Decades of conflicted immigration policy and enforcement strategies have provided scarce opportunities to reduce growing tension surrounding illegal immigration or insulate employers from the consequences. And, as the new administration steps in to take its turn at immigration reform, it should be realized that the mess of illegal immigration will get worse before it gets better, and employers will be pushed to center stage while we work our way through reform.

Why? Without having to address the merit and honesty of the dialogue about immigration policy and enforcement strategies, here are some realities that will delay reform and push the immigration debate further into the workplace:

  • Comprehensive immigration reform will not occur during an economic downturn, when jobs are scarce. Immigration reform occurs when economies are growing and workers are scarce.
  • The Department of Homeland Security (DHS) does not have the capacity to implement a legalization program capable of processing a conservative estimate of 10 million people likely to apply for “amnesty” if offered.
  • Intolerance toward unauthorized workers and their employers escalates during economic downturns.
  • Public confidence in the government’s ability to stop further illegal immigration has been realized as an integral part of immigration reform efforts.
  • State and local government actions to “take immigration law into their own hands” will force the federal government to elevate enforcement efforts.
  • The Mexico/United States border has been well fortified, and thus will no longer stand alone as a symbol of immigration enforcement efforts.
  • The government believes the great majority of unauthorized workers are employed in the agriculture, hotel/restaurant, meatpacking, construction, garment and “services” industries.
  • Prosecution of egregious employers for knowingly hiring unauthorized workers will be championed by the White House, Congress and DHS.
  • Identity theft and fraud associated with unauthorized workers is a threat to our national security as it relates to the integrity of government infrastructure, as well as access by terrorists.

Should you expect an escalation of raids against employers? No.

Although raids were extremely effective against targeted employers, and there was some “halo” effect on other companies, they are extremely inefficient. Between the commitment of agents, resources, logistics, cost and community uproar, the tactic actually crippled the government’s capacity to establish a credible enforcement presence within an industry or region. The ratio between the numbers of dedicated agents against the number of employers simply overwhelms this tactic standing alone. Raids will remain a tactical option, but used sparingly.

Will there be less focus on employers as part of the Administration’s immigration enforcement strategy? Not likely.

In fact, as tensions grow, the government will be forced to adopt much more effective enforcement capabilities based on “information sharing” supported by a continued emphasis on prosecuting employer misconduct and substantial fines. During the past two years, U.S. Immigration and Customs Enforcement (ICE) has built up a significant capacity to review and analyze large batches of I-9 forms for “discrepancies” alerting them to identity fraud as well as technical compliance. That effort — bolstered by incentives for employers to adopt more diligent screening processes at time of hire, as well as participation in E-Verify and IMAGE — positions ICE to exponentially engage multiple employers simultaneously.

Raids could give way to “Notices of Inspection” where an employer’s I-9s are demanded as a primary enforcement tool. Any discrepancy would have to be resolved and any technical compliance errors would be subject to fines. ICE would have the capacity to stay engaged with any employer until they were satisfied all discrepancies were resolved and not likely to happen again in the future, and the employer was technically compliant. Most importantly, prosecutions of egregious employers for knowingly hiring unauthorized workers will remain the highest priority for ICE for years to come.

What should processors do?

Protect your business by building an immigration compliance program around the model of other compliance programs, in which oversight, checks and balances to deter misconduct, and measurements of compliance are embedded. Although technical compliance with I-9 forms was rarely challenged by the government in the past, processors should anticipate a rigorous review process and fines for deficiencies. Most importantly, since discrepancies and/or inconsistencies of information provided on the I-9 will be reviewed by fraud experts, you should assume that most unauthorized workers will be identified through this process and will be removed from the worksite through termination or arrest. While adhering to anti-discrimination provisions and law, efforts to improve screening processes to detect identity fraud at time of hire should be encouraged. Processors should also be alert to recognize significant trends and patterns of identity fraud that, if left unchecked, could impact operations if detected.

These pre-emptive moves will position your company to grow unimpeded by an engagement by ICE or public scrutiny.

Mark Reed is the CEO/president of Border Management Strategies and one of the keynote speakers at The National Provisioner’s HROUNDTABLE events, sponsored by Ameritas Group. For more information or to register for the next event, call Melanie Doss at (630) 715-0642.